Why the music-licensing model won't save newspapers

After a century of foot-dragging, newspaper publishers are suddenly aflame with the desire to innovate, giving serious consideration to just about every alternative business model that offers a sliver of a hope of preserving them from oblivion.

Their latest idea: Newspapers can emulate the music business, banding together to form a single overarching licensing body that would extract payments from any commercial outlet that republishes their content. According to The Wall Street Journal, this notion was a focus of discussion at a hush-hush summit that newspaper executives held in Illinois last week.

From the Journal:

Under the music industry model, a venue or media outlet that wants to use a songwriter's work can purchase a yearly blanket license from the organizations that control the public performance rights to the compositions. The two largest organizations, the American Society of Composers, Authors and Publishers and Broadcast Music Incorporated, together represent the writers of millions of songs. Ascap and BMI distribute the money to songwriters and music publishers based on a complicated formula designed to ensure that a major television network pays a higher fee than a bar in Texarkana.

Why shouldn't The New York Times, Gannett, Tribune et al do the selfsame thing and create a licensing entity that would squeeze a nickel out of Nick Denton every time one of his Gawker Media blogs reprints an excerpt from one of their articles, as they do dozens of times each day?

Let's begin with an observation: When you're looking to the music business as a model of success in 2009, you know you're really screwed.

Now for the serious answer: There are two big reasons, neither of them addressed in the Journal's story, to doubt this scenario's promise. The first is the legal concept of fair use. Copyright law grants a considerable amount of latitude to news organizations that want to quote the work of other news organizations. Just how many sentences or paragraphs of a competitor's reporting you're allowed to reprint before it tips over into copyright infringement has never been defined precisely, but the amount is well north of zero.

With musical recordings, it's a very different matter. The provision for fair use is limited to the point of nonexistent. Even a few seconds of a song in a movie or a TV show require a license payment.

But assume publishers were somehow able to convince the courts that fair use ought to be applied as narrowly to text as it is to audio recordings (a development that would have a massive chilling effect on journalism, but set that aside for now). What then?

Newspapers' problems would be somewhat diminished but by no means fixed. The aggregators that routinely "scrape" opening paragraphs or even whole stories from papers' websites would have to abandon the practice. (The Huffington Post, for instance, would have to discontinue its "Quick Read" feature, unless it was prepared to pay up.)

But it would do absolutely nothing to discourage bloggers, who would still be free to rewrite the original stories in their own words. Copyright only protects the original arrangement of words, not the information contained therein (except in the case of so-called "hot news" exceptions.) Just as a radio deejay who wants to describe the sound of a Beyonce song instead of playing it can do that without a fee, a blogger who wants to summarize a newspaper story in his own language can do so with absolutely zero fear of committing infringement.

In other words, no licensing cartel -- even one that existed in a world where the First Amendment held much less sway over courts -- could ensure that newspapers enjoy all or even most of the traffic generated by their own reporting. Those "parasites" are always going to find a way to soak up much -- perhaps even most -- of it.

UPDATE: As pointed out in the comments, I misrepresented somewhat how fair use is construed as it applies to music. Yes, there are absolutely recognized fair uses of music -- in educational materials, for instance, or in parodies. I was thinking of the use of recorded songs in other works of entertainment, which, to my mind, is the proper analogy for the use of a newspaper article by a blogger. A rapper can't sample a pop song, even a few notes of it, without licensing that song, but a blogger can "sample" a paragraph from a news story that he's commenting on. As long as that's the case, attempts to wring revenues out of those bloggers will be futile.